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2026 Supreme(Bom) 959
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
N.J. JAMADAR, J.
Ganesh D. Tapkir - Petitioner
Versus
Baner Yethil, Samasta Gramastha Mandal Baner, Through it’s Representatives – Respondent
Writ Petition No. 16288 of 2025
Decided On : 01-04-2026
For the Petitioner:Mr. Anil Anturkar, Senior Advocate, Atharva Date, Kashish Chellani, Minal Chandnani, i/b Hemanth Ghadigaonkar.
For the Respondents: Mr. Avinash Bhuskute, Adv R.S. Khadapkar.
A community's right to use land for periodic activities exists as a customary right in gross, distinct from an easement. Such rights can be protected through judicial intervention when prima facie evidence confirms long-standing, continuous, and certain traditional usage, regardless of the lack of a dominant tenement.
Headnote:(A) Easements Act, 1882 - Sections 2(b), 4 and 18 - Customary rights vs. Customary easements - Distinction clarified - Customary easement must be appurtenant to a dominant tenement, whereas customary right exists in gross for a community - Indeterminate and fluctuating body of persons cannot claim an easement appurtenant to land. (Paras 14-17)
(B) Evidence Act, 1872 - Sections 13 and 48 - Proof of custom - Essential parameters include antiquity, usage, certainty, and reasonableness - Uninterrupted practice supported by historical documents and situational evidence provides prima facie material for asserting community rights. (Paras 19-21, 27-28)
(C) Civil Procedure - Constitution of India - Article 227 - Writ jurisdiction - Supervisory power - Scope is limited to correcting jurisdictional error, patent illegality, or perversity - Not an appellate forum to re-appreciate or review findings of fact derived from evidence. (Paras 32-33)
Facts of the case:
A representative group filed a suit asserting a long-standing traditional right to celebrate a religious festival on a specific piece of land. The trial court and appellate body granted relief to prevent the landowners from causing obstructions, identifying a clear prima facie case of continuous, ancient usage. The landowners challenged this, arguing that the claim lacked the necessary elements of an easement and that the pleadings were insufficient.
Findings of Court:
The courts below correctly distinguished between customary rights and easements, noting that the community's usage of the land constituted a customary right existing in gross. Substantial evidence, including historical records and physical site characteristics, supported the conclusion that the tradition was observed continuously and to the knowledge of previous owners.
Issues: Whether the claim of a community to celebrate a recurring event on private property constitutes a valid legal right and whether the lower courts were justified in exercising discretionary power to protect this usage pending final trial.
Ratio Decidendi: A customary right exists in gross and is not subject to the restrictive requirements of an easement appurtenant to a dominant tenement. Once a prima facie case of long-standing, continuous, and certain usage is established—often supported by site history and lack of early contestation—courts exercise valid discretion to preserve the status quo. Writ jurisdiction remains corrective and cannot be invoked to replace the lower court's reasonable assessment of facts.
Result: Petition dismissed.
| Table of Content |
|---|
| 1. procedural history and factual genesis of the representative suit concerning village customary rights. (Para 1 , 2 , 3 , 4) |
| 2. arguments concerning the requirements for pleading and proving a claim of customary easement versus property rights. (Para 5 , 6 , 7 , 8 , 9 , 10) |
| 3. classical distinction between statutory easements appurtenant to tenement and customary rights held in gross by a community. (Para 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18) |
| 4. criteria for establishing an ancient, regular, continuous, and reasonable custom in the context of interim relief. (Para 19 , 20 , 21 , 22 , 23 , 24 , 25) |
| 5. evidentiary value of historical documents and affidavits in proving long usage of customary rights. (Para 26 , 27 , 28 , 29 , 30 , 31) |
| 6. limitations on high court supervisory jurisdiction under article 227 of the constitution. (Para 32 , 33 , 34) |
| 7. dismissal of writ petition and expedition of trial proceedings for final adjudication. (Para 35 , 36 , 37) |
JUDGMENT :
N.J. JAMADAR, J.
1. Rule. Rule made returnable forthwith and, with the consent of the learned Counsel for the parties, heard finally.
2. By this Petition under Article 227 of the Constitution of India, the Petitioners-original Defendant Nos. 1 and 2, take exception to a judgment and order dated 3rd April 2025 passed by the learned District Judge, Pune in MCA No. 101 of 2024, whereby the said Appeal preferred by the Petitioners against an order dated 22nd April 2024 passed by the learned Civil Judge, P.M.C. Court, Pune, thereby granting injunction, came to be dismissed by affirming the order passed by the trial Court.
3. Shorn of unnecessary details the background facts can be stated as under:
3.1 A representative suit came to be instituted by an organization of villagers of Baner, styled, “Baner Yethil Samastha Gramastha Mandal” through Respondent Nos. 1 to 10, seeking a declaration that the villagers of Baner have a customary right to celebrate Bagad festival on the occasion of “Hanuman Jayanti”, and to restrain the Petitioners-Defendant Nos. 1 and 2 from causing obstruction in any manner whatsoever in the celebration of the said festival which has been celebrated in accordance with the traditions since ancient times.
3.2 The substance of the claim of the Plaintiff was that “Shree Bhairavnath” is the village deity of Baner; which has been included in the Pune Municipal Corporation in the year 1997. Shree Bhairavnath Temple is located in “Gaothan” of village Baner. Another temple of Bhairavnath known as “Shree Bhairavnath Paduka Mandir” is situated at Survey No. 288. Since time immemorial every year, on the occasion of Hanuman Jayanti, a festival styled, “Bagad” is celebrated on the land admeasuring 10 R situated in front of “Shree Bhairavnath Paduka Mandir” temple. The said 10 R land is the suit property.
3.3 The Plaintiff asserts that for the said Bagad festival 2000-3000 devotees assemble in the suit property. A ritual of moving the Bagad which is like a chariot mounted on a bullock-cart is performed for over an hour. The said festival has been celebrated since 400-500 years. The villagers had erected a fencing to earmark the suit property, out of the funds raised from the villagers.
3.4 Murkute family was the holder of the larger land of which the temple and the suit property form part. Murkute family had kept the suit property open to facilitate the celebration of annual Bagad festival. In the year 1967 Bhau Murkute and others sold the land bearing Survey No. 288 to Ratnakar Bharvirkar. The description of the property conveyed thereunder clearly indicates that the suit property was earmarked for the Bagad festival.
3.5 As Defendant Nos. 1 and 2 attempted to remove the fencing around the suit property, the villagers resisted the said effort. In the enquiries that followed, it transpired that under a registered Sale Deed dated 24th August 1987, Bharvirkar had sold the larger land to M/s Mankanis Builders Developers Private Limited (“M/s Mankanis Builders”). Subse
